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[2022] ZAFSHC 214
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Standard Bank of South Africa Ltd v Vermeulen (1629/2022) [2022] ZAFSHC 214 (30 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
1629/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrate: NO
In
the matter between:
THE
STANDARD
BANK OF SOUTH AFRICA LTD
Plaintiff
and
JACOBUS
VERMEULEN
Defendant
CORAM:
AFRICA,
AJ
HEARD
ON:
18
AUGUST 2022
DELIVERED
ON:
This
judgment was handed down electronically
by circulation to the
parties' legal representatives by email. The date and time for
hand-down is deemed to have been at 9h00 on
30 August 2022.
JUDGMENT
INTRODUCTION
[1]
This
is
an
application
for
summary
judgment.
The
application stands opposed and the defendant has filed his affidavit
resisting the application. Plaintiff is of the view that
the
defendant has raised no
bona fide
defence or triable issues.
BACKGROUND
[2]
According
to
the
plaintiff's particulars of claim, on 17
June
2020, the plaintiff entered into a written settlement agreement with
certain companies, including Karah Equity (Pty) Ltd,
(in
liquidation)
(hereinafter
referred to as "the principal debtor").
[1]
In
terms of the Deed of Settlement the principal debtor acknowledged to
be indebted to the plaintiff in respect of 5 (five) account
numbers
and on the 2
nd
of July 2020, the settlement agreement was made an order of court.
[2]
[3]
The
amounts due in terms of the deed of settlement were not paid and the
principal debtor is indebted to
the
plaintiff in
the
amounts as set out in paragraph 8 of the particulars of claim.
[3]
[4]
On
19 November 2019 the defendant signed a written guarantee in terms
of
which
the
defendant
unconditionally
guaranteed
and
undertook the
due,
punctual and full payment of all
debts
which the principal
debtor
owes
to
the
plaintiff.
As
a
result
of
the
indebtedness
of the principal debtor, the defendant, as guarantor, is indebted to
the
plaintiff
in
the
amounts set out in
paragraph
12
of
the
particulars of claim.
[4]
[5]
The
defences raised in the defendant's plea
[5]
can be succinctly summarised as follows:
[5.1]
Defendant is
not
bound
by
the
terms
of
the
guarantee
because it had been signed in error;
[5.2]
At the time of signing same he was
acting on behalf of the principal in concluding various agreements;
he was presented with a bundle
of documents comprising various
contracts for signature
on
the
assumption that it contained the
terms of
the agreement reached between the
plaintiff and the defendant acting in his representative capacity
only;
[5.3]
When signing the guarantee, plaintiff and/or its duly authorised
representative acting on its behalf negligently failed to
disclose to
him the fact that the bundle of documents contained a guarantee
binding the signatory thereto as guarantee and undertaking
therein an
obligation independent of the principal;
[5.4]
He never intended to bind himself as guarantee or to create personal
liability by signing the guarantee, Annexure "POC6"
to the
particulars of claim.
[6]
Plaintiff
contends that
there is
simply no
merit to
the defences raised and that even on the
defendant's version, does he not disclose a
bona
fide
defence.
[7]
The
first
bone
of
contention raised is
that
the
defendant
is
not
bound by the terms of the agreement because he was unaware that the
bundle of documents contained a guarantee and thus signed
it in
error. In support of this notion, the defendant draws this court's
attention to the fact that it is a policy in offices of
Karah Equity
(Pty)Ltd and its subsidiaries that
directors
do not put forth security.
In
abetment hereof, this court is
referred to
the confirmatory affidavit by a certain
Mr Martin Walter.
[8]
It
is
argued that the
facts
of
this
case at
the
least set up an "innocent misrepresentation"
on the
part
of
the
plaintiff,
when
one
accepts
that it
is
conceivable that when the
defendant
so
signed
the
±500
pages, that a document could be signed in error.
[9]
It
is contended that essentially, the guarantee was not negotiated, nor
pointed ·out to the defendant, and he was in the
dark when
signing the
various
documents and disputes that the
guarantee
was pointed out to him at all. Therefore, in the circumstances, it
was required of the plaintiff and its personnel to
duly point out the
guarantee and to have informed the defendant thereof, which they did
not do according to the defendant.
[6]
[10]
In
refutation
of this argument, plaintiff refers this court to the case of
Blue
Chip Consultants (Pty)Ltd v Shamrock
[7]
where
the following is stated:
"Secondly,
I do not understand our case law to hold that a person will escape
the consequences of his signature if it can be
shown that he had not
read the document in question. One is expected to read what one
signs,"
Further,
in the case of
Tesoriero
v Bhyjo Investments Share Block (Pty)Ltd
[8]
where
the following was stated:
"The
general principle, where a person has signed a contract and wishes to
escape liability on the ground of justified error
as to the nature or
contents of the document, is that he or she must show that he or she
was misled as to the nature of the document
or as to the terms which
it contained by some act or omission of the other contracting party"
[11]
The
defendant,
also
placing
reliance
of
the
case
of
Blue
Chip (supra),
drew
this courts attention to the following extract"
"The
furthest the courts will go on a principle approach is to identify
the issue as one of iustus error. See Sonap Petroleum
(SA) (Pty) v
Pappadogianis
[9]
.
For
the rest the approach is casuistic.
It
involves a consideration of the document itself and the nature
of
the transaction between the parties. By nature of the transaction, I
do not mean its
legal
classification. I mean what transpired between the parties which led
to the signing
of
the document and other relevant admissible evidence which assists in
explaining the
basis
upon which the signature was placed. It would embrace instances where
the
party
who presented the form was aware that the other party was illiterate.
It would
include
misrepresentations made by the creditor or other conduct which a
court
considers
sufficiently blameworthy so as to relieve a party from some, or all,
of the
ordinary
consequences of his signature"
[12]
Plaintiff argues that even on a cursory glance of the document
in
question,
the
defendant should have been alerted by
the
heading
which is printed in bold letters:
"GUARANTEE"
Directly
beneath that, once again in bold letters the following words appear:
"LIABILITY
AND OBLIGATIONS OF THE GUARANTOR"
[13]
Further the plaintiff states that prior
to the defendant signing the guarantee, it was discussed with the
defendant that the plaintiff
required collateral in the form of a R10
000 000.00 guarantee to be signed
by
the
defendant.
The
defendant
agreed
to
sign
the
R10 000 000.00 guarantee where after the guarantee was sent to the
Bloemfontein branch of the plaintiff by the Durban Collateral
Centre
under a collateral cover sheet. A copy of the collateral coyer sheet
dated 7 November 2019 is annexed hereto as Annexure
"AS1".
Prior to
the defendant
signing the
guarantee he
was informed that the document which he
was signing constitutes the guarantee in the amount of R10 000 000.00
which plaintiff required
as
collateral.
[14]
From the above, one gathers that the
"discussion" between the parties was not a hastily affair,
"AS1" dated
7 November 2019 indicates that the Collateral
documents forwarded electronically contained the Guarantee Restricted
to R10 Million.
Why will defendant all of a sudden "slip-in"
the guarantee documents into a bundle, when the signing of the
guarantee
formed the basis of the collateral required by
plaintiff.
Therefore, the
impression created by the defendant that
he was in the dark when signing the documents, falls to be rejected.
More so when one has
regard to the fact that each
and every
page of
the
Guarantee document had
to
be
initialled
and on the second last page, beneath the heading
Guarantor
No1
,
the
defendant's
full
details
appear,
where he
appended his
signature.
[15]
This court agrees with the submission
that anyone reading the form should immediately have been put on his
guard.
Further,
defendant
failed to show that he was misled as to
the nature of the document or as to the terms which it contained by
some act or omission
by the plaintiff.
[16]
In
response to the argument raised by the defendant that the Guarantee
was not pointed out or discussed with him at all, this court
was
referred by the plaintiff to the case of
Slip
Knot Investments
777
(Pty) Ltd v Du Toit
[10]
where
the
following was stated:
"A
contracting party is generally not bound to inform the other party of
the terms of the proposed agreement. He must do so,
however, where
there are terms that could not reasonably have been expected in the
contract. The court below came to the conclusion
that the suretyship
was "hidden" in the bundle, and held that the respondent
was in the circumstances entitled to assume
that he was not
personally implicated. I can find nothing objectionable in the set of
documents sent to the respondent. Even a
cursory glance at them would
have alerted the respondent that he was signing a deed of
suretyship."
[17]
Further, the plaintiff argues that it is
peculiar why the defendant will at no stage inform the plaintiff that
there is this policy
at Karah Equity, and its subsidiaries that
directors will not put forth security, during the course of their
ongoing negotiations.
Plaintiff contends that
the confirmatory affidavit deposed to
by a
certain Martin Walzer does not inform
what his involvement is with Karah Equity, neither does it state
whether he deposed to this
affidavit as a director or subsidiary.
Plaintiff contends that this defence is without merit.
[18]
Another
defence
raised
is
that
the
deponent to
the
founding affidavit claims to have personal knowledge , though
when
the defendant dealt
with
the
deponent
when
he
signed
the
guarantee, the majority of
the
negotiations
with
plaintiff
did
not
occur
with
the
deponent.
[11]
Furtherthat
the
deponent has no
personal
knowledge of the matter and he was not directly involved
and
only now draw knowledge from the files and documents in his
possession.
[12]
[19]
In
refuting
this argument this court is referred to
the
case of
Appel
in
Rees
and Another v Investec Bank Ltd
[13]
where
it was stated that where an applicant for summary judgment was a
corporation, the deponent to its affidavit did not need to
have
first-hand knowledge of every I fact comprising its cause of action.
The deponent could rely
for
its
knowledge
on
documents
in
the
corporation's
possession.
Here the deponent, a recoveries officer had had sufficient personal
knowledge to swear positively to the facts. She
had acquired her
knowledge
on
a
perusal
of
the
documents
relevant
to
the
action, and had personally corresponded with the sureties' attorneys
on the debtors' delinquent accounts, later writing them
letters of
demand, and receiving from them responses setting out the sureties'
defences.
It
was
unimportant
that
she
had
not
signed
the
certificates of indebtedness sent to the sureties, and that she had
not been present when the suretyship agreements were concluded.
[20]
This court accords with the sentiments
expressed above. It is clear from the case law that first-hand
knowledge of every fact which
goes to make up the plaintiff's cause
of action is not required and that, where the plaintiff is a
corporate entity, the deponent
may well legitimately rely on
his or her personal knowledge of at
least certain of the relevant facts and his ability to swear
positively to such facts, on records
in the company's possession.
[21]
The
defence
raised in this regard that the
deponent,
though present when the defendant signed the guarantee, was not a
part of the majority of the negotiations with the plaintiff
and thus
has no personal
knowledge
of
the
matter
and
that
he
only
draws
knowledge from the files and documents in his possession, is without
merit.
[22]
In
as much as the summary judgment procedure was not intended to deprive
a defendant with a triable issue or a sustainable defence
of his day
in court, this court supports the view as expressed in the case of
Joob
Joob investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[14]
where
it was held:
"that
summary judgment proceedings terrified only those who had no defence,
and that the time had perhaps come to discard those
labels such as
'extraordinary and 'drastic' and rather to concentrate on the proper
application of the rule".
[23]
It is the considered view of this court
that no sustainable or
bona fide
defences had been put up by the
defendant.
[24]
In the result the following order is
made:
Summary
judgment is granted in favour of
the plaintiff against the
defendant
for:
1.
In respect of account number
[....]:
1.1
Payment of the amount of
R48
416,86;
1.2
Payment of interest on the amount of R48
416, 86 at the rate of 7.750% per annum, calculated from 2 March 2022
to date of payment,
both days inclusive.
2.
In respect of account number
[....]:
2.1
Payment
of
the amount of
R61 197,41;
2.2
Payment of interest on the amount of R61
197, 41 at the rate of 7.750% per annum, calculated from 2 March 2022
to date of payment,
both days inclusive.
3.
In respect of account number
[....]:
3.1
Payment of the amount of
R3
321,63;
3.2
Payment of interest on
the amount of
R3 321, 63 at the rate of 7.750°/o
per annum, calculated from 2 March 2022 to date of payment, both days
inclusive.
4.
In respect of account number
[....]
4.1
Payment
of
the amount of
R250 609,71;
4.2
Payment
of
interest
on
the
amount
of
R250
609,
71 at
the
rate of
8.00% per annum, calculated from 2 March 2022 to date of payment,
both days inclusive.
5.
In respect of account number
[....]:
5.1
Payment of the amount of
R8
181 174,03;
5.2
Payment of interest on the amount of R8
181 174, 03 at the rate of 7.750% per annum, calculated from 3 March
2022 to date of payment,
both days inclusive.
6.
Costs of suit on an attorney and client
scale.
A.
AFRICA AJ
APPEARANCES:
COUNSEL
FOR
PLAINTIFF:
Adv.
Eis
Instructed
by:
Phatshoane
Henney Inc
COUNSEL
FOR
DEFENDANT:
Adv.
Sander
Instructed
by: Peyper
Attorneys
[1]
Paragraph 4, POC, page 7.
[2]
Paragraph 7, POC, page 13
[3]
Paragraph 9, POC pages 15-16.
[4]
Paragraph 12, POC, pages 18-19
[5]
Paragraph 8, defendant's plea, page 3
[6]
Paragraph 22, the defendant's heads of argument
[7]
2002 (3) SA 231
(W) at 239E-F
[8]
2000 (1) SA 167
(W) at 175F
[9]
[1992] ZASCA 56
;
1992 (3) SA 234
(A) at 239A - 240B and the cases cited
[10]
2011 (4) SA 72
(SCA) at 77H
[11]
Paragraph 6 of the affidavit resisting summary judgment.
[12]
Paragraph 12 and 15 of the affidavit resisting summary judgment.
[13]
2014 (4) SA 220
(SCA) at page 221
[14]
2009 (5) SA 1
(SCA) at 3D.